Monthly Archives: March 2012

Who Owns a Twitter Account?

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 As the use of social media continues to grow, many companies may be wondering who owns an employee’s social media account, particularly when it is used for business purposes. A trade secret lawsuit currently pending in California will likely shed light on the issue.

The Facts of the Case

Phone Dog Media filed the lawsuit against its former website writer Noah Kravitz after he left the company in October 2010. The dispute centers on his Twitter name “Phonedog_Noah” (tied to his personal email) and its 17,000 followers, which he took with him when he left.

Phone Dog contends that it is the rightful owner of the Twitter account, characterizing it as a proprietary customer list. The company is seeking damages of $340,000, which amounts to $2.50 a month for every follower for the eight months Kravitz used the Twitter handle.

Meanwhile, Kravitz contends that the company told him that he could keep the “Phonedog_Noah” account in exchange for tweeting for the company “from time to time.” He further claims that Phone Dog filed the lawsuit in retaliation for his claim to 15 percent of the site’s gross advertising revenue because of his position as a vested partner, the New York Times reports.

 The Legal Ramification of the Case

 Because social media ownership is such a novel issue, the court’s decision promises to have broad legal ramifications. In addition to shedding light on how ownership should be determined, it may also dictate how the value of Facebook friends and Twitter followers should be calculated.

 I will keep you updated.

If you have any questions or concerns regarding social media issues, please contact me for a free consultation.

What If I Want to Write Using a Pseudonym?

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Sometimes, authors want to their true identity to remain hidden from the public. For instance, popular author Dean Koontz has written under at least eleven pen names. Many often wonder if authors who use pen names or pseudonyms can still copyright their work.

The answer is yes. As detailed by the U.S. Copyright Office, a work is considered “pseudonymous” if the author is identified on copies of the work by a fictitious name. Nicknames and other diminutive forms of legal names are not considered fictitious.

If you write under a pseudonym but want to be identified by your legal name in the Copyright Office’s records, you should provide your legal name and your pseudonym on your application for copyright registration. Check “pseudonymous” on the application if the author is identified on copies of the work only under a fictitious name and if the work is not made for hire.

If an author’s name is given, it will become part of the Office’s online public records, which can be searched via the Internet. Therefore, if you want to completely conceal your identity, you should provide your pseudonym and leave the space that asks for the name of the author blank.

The Length of Copyright Protection

It is also important to note that the use of a pseudonym can impact the length of your copyright protection. Copyrighted works published under a pseudonym are awarded copyright protection that is the earlier of 95 years from publication of the work or 120 years from its creation. However, if the author’s identity is provided in the registration records of the Copyright Office, including in any other registrations made before that term has expired, the term then becomes the author’s life plus 70 years.

Legal Concerns to Discuss With a Copyright Attorney

It is important to note that you should never omit the name of the copyright claimant. While you can use a pseudonym for the claimant name, it is important to understand that using a fictitious name has several drawbacks. For instance, business transactions involving the copyrighted property may be more difficult, as contracting parties may raise questions about the copyright’s ownership.

If you have any copyright questions, please contact me for a free consultation.

How To Protect Your Trade Secrets

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As you may have heard, one of the country’s most closely guarded trade secrets has changed locations. Coca-Cola has created a high security vault in Atlanta to house its “secret formula” for the popular soft drink.

Until this week, the only official written copy was allegedly kept under lock and key in a bank vault. According to the myth surrounding the trade secret, only two people at any given time are allowed to be privy to secret recipe. The same two people are prohibited from taking the same plane in the event it crashes, and the trade secrets are taken to the grave.

Of course, not all businesses can afford to go to such great lengths to protect their trade secrets. However, you should take reasonable steps to protect your confidential information.

Below are a few practices that all businesses can employ:

  • Have all employees, independent contractors, and temporary personnel execute confidentiality agreements. These agreements should define the term trade secrets, limit how employees can utilize trade secrets, and outline the legal repercussions if they breach the agreement.
  • Train employees, independent contractors, and temporary personnel about how to manage confidential information.
  • Clearly designate any information that the company considers confidential. This can be as easy as stamping “confidential and proprietary” on it.
  • Limit access to confidential information to a “need to know” basis. Use security measures such as locked file cabinets or password protection to prevent others from accessing it.
  • Require vendors, suppliers, and potential customers to sign non-disclosure agreements if they will encounter confidential and proprietary information.
  • Advise employees, independent contractors, and temporary personnel that any confidential information that they create on behalf of the company is the property of the company.
  • Take steps to ensure that all confidential information is returned or destroyed when employees, independent contractors, and temporary personnel terminate their relationship with the company.

Of course, these are only a few general tips. To ensure that your company’s trade secrets are thoroughly protected, it is a good idea to consult with an experienced intellectual property attorney.  If I can help you in any way, please contact me.

What is a Design Patent?

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In general, a “design patent” protects the way an article looks, as opposed to a “utility patent” that protects the way an article is used and works. In some cases, an invention possesses both functional and ornamental characteristics, and both design and utility patents may be obtained.

What Is a “Design?”

A “design” is defined as the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may refer to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.

What Can Be Patented?

As with a utility patent, a design patent must be approved by the United States Patent and Trademark Office. It is important to note that the following cannot be the subject of a design patent:

  • A design for an article of manufacture that is dictated primarily by the function of the article.
  • A design for an article of manufacture that is hidden in its end use and whose ornamental appearance is of no commercial concern prior to reaching its end use.
  • A design for an article of manufacture that is not “original.” For instance, a design that simulates a well known, or naturally occurring object or person is not original as required by the statute.
  • Subject matter that could be considered offensive to any race, religion, sex, ethnic group, or nationality is not proper subject matter for a design patent.

What Rights Does a Design Patent Afford?

A design patent has a term of 14 years from the date it is granted. Like a utility patent, it allows the owner to pursue legal action against infringers. With respect to design patents, courts will use the “ordinary observer” test. The test examines both the similarities and differences between the two products to determine if there is sufficient overall similarity that would mislead the ordinary observer into thinking they are the same product.

How I Can Help

Of course, this post provides only a broad overview of design patents. Before embarking on the patent process, it is advisable to consult with an experienced patent attorney. Please contact me if you have any questions.

Messier Marathon – The Results

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Well, once again Mother Nature has thwarted another attempt by me to complete a full photographic marathon.  Actually, this time she had help.  I had started to test my equipment on Thursday night and everything was working so well that I actually had 50 Messier objects photographed by midnight.  However, I had an important client teleconference in the morning, so I decided that work needed to get done (solely to support my telescope habit) and stopped.  Looking back now, I should have stayed up all night, done the marathon and teleconference, then slept the rest of the day.  Alas, the clouds came rolling in and wiped out the seeing for the weekend.  I will try again next year.  I will process some of my images that I did manage to take and post them in the next few days.  The featured image was taken by Daniel Perry an RAS member.  You can check out more of his outstanding photos at http://www.californiastars.net.

– Ex astris, scientia –

Venus and Jupiter at Dusk

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Tonight and tomorrow offer some more spectacular views of Venus, Jupiter and a small crescent Moon at dusk in the West.  You don’t even need binoculars or a telescope as the 3 objects can be seen quite clearly with the naked eye. All you have to do is go out and look. If you can take your children out and show them.

– Ex astris, scientia –

 

Do I Need a Trademark?

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Owning a Federal trademark registration provides several distinct advantages, including the ability to file a trademark lawsuit to protect the mark. In order to obtain a trademark, applicants must be able to show current use of the mark in commerce, or their intent to use their mark “in commerce” in the future. What do you mean “in commerce?” According to the USPTO, “use in commerce” must be a bona fide use of the mark in the ordinary course of inter-state trade, and not use simply made to reserve rights in the mark. Acceptable use includes the following:

For goods: the mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce.

For services: the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in commerce.

What If I am Already Using the Mark?

If you have already started using the mark in commerce, you may file a “use” based application. It must include a sworn statement that the mark is in use in commerce, including the date of first use of the mark anywhere and the date of first use of the mark in commerce. The application should also include a specimen showing use of the mark in commerce.

Of course, there are many other factors that must be considered before formally filing a trademark application. Therefore, I recommend consulting with an experienced trademark attorney.

If I can help you in any way, please contact me for a free consultation.

Messier Marathon Madness

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This weekend is your is your best chance  to participate in this year’s Messier Marathon. What is Messier marathon you might ask? It’s the one night of the year where you can see all 110 objects cataloged by Charles Messier. Well who is this Charles Messier you might ask? Charles Messier was a French astronomer and Comet Hunter  In the late 18th and early 19th centuries. While trying to locate  comets in the night sky he observed these  110 objects that were not transitory, but permanent. Due to the lack of sophisticated astronomical equipment most nebula and galaxies appeared as fuzzy blobs in the telescopes of the day. So Charles decided to catalog all of these objects so that other astronomers wouldn’t waste their time while searching for comets. Ingeniously, modern astronomers now identify this catalog of objects with the designations of M1-M110, how original. Actually, almost every object in the heavens as a designation of NGC followed by a number. NGC stands for the new  general catalog. Again, not so original but infinitely practical. I actually have friends who have vast amounts of the NGC  memorized. I of course use a computer.

If you’re just starting out in astronomy or an old hand this is the weekend for you. Try to find a local astronomy club and where they meet to look at the stars and go join them. Remember to dress warmly because it’s been a great deal of time just standing around marveling at the heavens.

This year, weather permitting, I will complete my 1st full photographic Messier Marathon. Wish me luck.

– Ex astris, scientia –

Copyright Offices Proposes New Protection for Pre-1772 Recordings

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The U.S. Copyright Office recently recommended that sound recordings made before February 15, 1972 be brought under federal copyright law. Under the current copyright regime, recordings made before that date are protected under state law.

As a result, the legal protection of pre-1972 sound recordings varies by state, and the scope of protection is often unclear. Some say that the current system hampers efforts to preserve historical sound recordings and make them accessible to the public.

Below are a few highlights from the office’s report on Federal Copyright Protection for Pre-1972 Sound Recordings:

  • Federalization would best serve the interest of libraries, archives, and others in preserving old sound recordings and in increasing the availability to the public of old sound recordings.
  • The principal objection offered by certain right holders – that federalizing protection for pre-1972 sound recordings would cast a cloud over existing ownership of rights in those recordings – can be addressed by expressly providing that the ownership of copyright in the sound recording shall vest in the person who owned the rights under state law just prior to the enactment of the federal statute.
  • The term of protection for sound recordings fixed prior to February 15, 1972 should be 95 years from publication or, if the work had not been published prior to the effective date of legislation federalizing protection, 120 years from fixation.
  • In no case would protection continue past February 15, 2067, and
in cases where the foregoing terms would expire before 2067, a right holder may obtain extended protection for any pre-1972 sound recording by making that recording available to the public at a reasonable price and, during a transition period of several years, notifying the Copyright Office of its intention to secure extended protection extended protection.

The full report is available here.

Contact me if you need help with any copyright issues or any other intellectual property issues.


One Step Closer!

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The Los Angeles County Bar Executive committee unanimously voted this last week to approved the Armed Services committee for permanent status.  The motion now goes before the full board and hopefully I will be able to report shortly that all the hard work of the committee to draft a report citing the need for this committee on  a permanent basis will come to fruition.  As a former Chief Petty Officer in the Navy, I was more than happy to make a small contribution to this effort.  However, there are many others one the committee that deserve credit for making this happen.  With 25% of the homeless population of Los Angeles being veterans, we could not stand by without doing something.  A recent survey citing the 3 top needs of these veterans as being help with legal issues, we jumped at the chance to act.  A special thanks goes out to Adam Siegler of Greenberg Traurig, LLP for spearheading this group.  Although he is in the Army Reserve JAG Corps, I can’t hold that against him.  Especial after we keep beating them in football (sorry Adam ;-}, Go Navy! Beat Army!).

Although the work at getting the committee formed is almost completed, the real work is yet to begin.  To all the veterans, active duty, reserve and their families, we will do our best to provide you with the help you need.

I cannot express my gratitude enough to the committee members who made this happen, but even more to those that have, and are now serving this county.

I am personally working with others in Riverside county to try and expand this program and others to assist those who defend freedom.

Norman